Sir Cliff triumphs in privacy claim against the BBC

August 2018

PRIVACYBroadcasting

Perhaps unsurprisingly, Sir Cliff Richard has won his privacy battle with the BBC and has won a substantial damages payment from the state broadcaster.

You will probably remember that this litigation spewed from the BBC’s coverage of South Yorkshire Police’s (SYP) raid on Sir Cliff’s Berkshire home in 2014. The raid was the result of a claim against Sir Cliff for historical sexual abuse. Whilst the BBC have already claimed the result of the case is a blow to press freedom, it must be remembered that no arrest was made, and ultimately resulted no charges were brought.

The BBC was tipped off about the time and date of the raid by SYP and went on to break the story as an exclusive on the 1 o’clock news. Scenes of the raid were filmed from both the ground and a helicopter. Following the BBC’s coverage, the story rapidly spread around the World.

Originally SYP was a named as a defendant alongside the BBC. In this tranche of the claim Sir Cliff claimed that SYP had breached privacy and the Data Protection Act 1998 by disclosing that he was under investigation for sexual offences and the date and time of the raid. SYP went on to admit liability to Sir Cliff, pay damages, costs and also provide an apology in open court. This tranche was therefore settled out of court. SYP’s admission was founded on the basis that it did give the BBC advance notice of the raid and therefore assisted the BBC’s broadcasting of the events.

The BBC was reluctant to admit liability and went on to its several days in court. Sir Cliff’s claim against the BBC again revolved around privacy and the Data Protection Act, but it was claimed that this breach arose from the public disclosure and broadcast of the aforementioned facts.

Following a lengthy trial in April and May, Mr Justice Mann handed down his judgement last week. Mr Justice Mann had a number of issues to determine, not least Sir Cliff’s claim against the BBC for an infringement of privacy rights. The answer to this was done by weighting up Article 8 of the Human Rights Act 1998 (the right to respect for private and family life) against Article 10 (the right to freedom of expression).

Mr Justice Man found that in this balancing exercise Sir Cliff did have a right of privacy in respect of the SYP’s investigations and this right to privacy was breached by the BBC. The judge went so far as explaining that Sir Cliff’s privacy right was breached in a somewhat sensationalist way, and no doubt the use of the helicopter plaid a part in this.

The BBC contended that it was entitled to report the facts of the investigation under the head of freedom of expression. This was rejected by Mr Justice Mann.

Mr Justice Man found that it was not necessary to adjudicate on the claim under the Data Protection Act as the claim under privacy established liability on the BBC’s part. Because liability was established, Sir Cliff was found to be entitled to damages. There are two strands to the damages award: general damages and special damages. The general damages award is based upon the effect that the breach of privacy had on Sir Cliff. Mr Justice Man assessed the general damages award to be at £190,000 on the basis that the BBC’s breach was so substantial with the judge taking a very dim view of the fact the BBC had entered their ‘scoop’ into the Royal Television Society Awards.

Special damages are assessed on the financial effects of the breach of privacy. One example of this is Sir Cliff’s lawyers’ fees for having a Facebook page entitled “Christians against Cliff” taken down after it was created on the same day as the search. Special damages of £20,000 were awarded to Sir Cliff.

Mr Justice Mann was then requited to assess how the damages award should be split between the BBC and SYP. SYP contended that the BBC bore a higher level of responsibility, whereas at one stage the BBC went so far in submitting that it should not have to contribute at all. Mr Justice Mann did not agree with either sides position and found that the BBC should pay 65% of the damages, leaving SYP with 35% to pay.

At paragraph 453 of his judgment Mr Justice Man held that the BBC is liable to Sir Cliff for The BBC is liable to Sir Cliff Richard for infringing his privacy rights. The BBC should pay general (including aggravated) damages in the sum of £210,000 in respect of that infringement. Legal causation has been established in respect of certain sample special damages claims, subject to the caveats appearing above, the damages for which both the BBC and SYP are liable shall be apportioned 5:35 as between the BBC and SYP.

The BBC said journalists acted in good faith and it is considering an appeal. Speaking outside the High Court in London, the BBC’s director of news and current affairs Fran Unsworth apologised to Sir Cliff and said: “In retrospect, there are things we would have done differently.” But, she said, the case marked a “significant shift” against press freedom and an “important principle” around the public’s right to know was at stake.